Here is the text of the Lease Agreement presented at the June 22, 2015 Advisory Parks Board Meeting. You see the original document by clicking here
LEASE AGREEMENT BETWEEN
THE CITY OF FOND DU LAC
AND
WINNEBAGO LUTHERAN ACADEMY
This Lease Agreement (“Agreement”) is made by and between the City of Fond du Lac, a
Wisconsin municipal corporation, (“City”) and the Winnebago Lutheran Academy Association, a
Wisconsin non-stock corporation, (“WLA”).
WHEREAS, the City owns property known as McDermott Park, which includes the
property shown in Attachment A to this Agreement (“the site”); and
WHEREAS, WLA has expressed interest in leasing a portion of the site for the
construction and use of athletic fields, the south parking lot and associated improvements at the
site, as shown in Attachment B to this Agreement (“the leased premises”); and
WHEREAS, the City, due to budget constraints, would not be able to make these
improvements without the help of WLA. These improvements will benefit both City residents
and WLA; and
WHEREAS, WLA, through its Board of Directors, has approved the construction of
athletic fields, the south parking lot and associated improvements on the leased premises.
NOW, THEREFORE, BE IT RESOLVED, that the City and WLA mutually agree on the
following terms and conditions for construction and use of the site.
1. Premises & Construction. In consideration of the covenants contained herein and
other valuable consideration, the City hereby leases to WLA and WLA hereby leases from the
City the premises now located or to be constructed on the leased premises. Furthermore, WLA
agrees to construct athletic fields, the south parking lot and associated improvements on the
leased premises in conformance with all City Building requirements (together “Improvements”).
In the context of this Agreement, construction is limited to the creation of 3 athletic fields, the
ancillary features of athletic fields normally associated with the sports for which they are created
and one parking lot (normally associated means dugouts, fences, bleachers, lights, etc.).
A master site plan shall be submitted to the City for approval prior to commencing any site work.
The City’s approval shall not be unreasonably withheld, delayed, or conditioned. Construction
of the Improvements may occur in phases. However, prior to beginning any phase WLA must
show to the reasonable satisfaction of the City’s Parks Superintendent that sufficient resources
are available to complete the contemplated phase. WLA agrees to complete construction of any
phase of its work within 12 months of commencement. WLA will work to minimize disruptions
and communicate in advance with the Recreation Department. It is anticipated that the 2016
season will be completely disrupted. Title to the Improvements shall be held by the City.
At the time of the execution of this Agreement WLA reasonably believes that there will be
sufficient space for the contemplated Improvements. However, if WLA subsequently determines,
in its sole discretion, that there is insufficient space for the contemplated Improvements, then
WLA may either or both (a) request that the City consider expanding the boundaries of the
leased premises, to which request the City will give good faith consideration, or (b) rescind this
Agreement.
WLA reserves the right to modify the Improvements in the future, subject to the City’s approval,
which shall not be unreasonably withheld, delayed, or conditioned, provided that the
modifications to the Improvements align with the intent of this Agreement, which is to provide
outdoor sports fields for high school athletic programs and public access, as described herein, to
those fields.
2. First Use and Occupancy Rights. In exchange for constructing the Improvements, the
City grants WLA first occupancy and use rights to the constructed athletic fields from September
through May of each year. Except as provided, below, the City retains first occupancy and use
rights from June through August of each year. The City and WLA acknowledge the need for
WLA to access the athletic fields in portions of both June and August to correspond with either
WLA’s school calendar or WIAA events. The City agrees that WLA’s first occupancy and use
rights shall be adjusted to correspond with either WLA’s school calendar or WIAA events;
provided, however, that the City retains first occupancy and use rights in August for the softball
fields. Accordingly, WLA will schedule its use of the athletic fields during August to avoid
conflict with the Recreation Department schedule. Both the City and WLA also acknowledge
the potential need for WLA to access the athletic fields in June. When such a need arises, WLA
must promptly advise the Recreation Department no later than March 1 of that year. The first
occupancy and use rights as described shall exist through the year 2065 and shall, thereafter,
automatically renew on an annual basis unless either party gives a written 90 day notice of intent
to renegotiate the terms of this Agreement. This Agreement does not extend first occupancy and
use rights to the south parking lot, which will be available to the general public on a first come,
first served basis for the duration of this Agreement.
3. Public Use.
3.1 The City and WLA further agree that when the leased premises are not
being used by the WLA, they shall be available for public use. The City
retains the authority to set park hours and reserve the fields outside of the
times the fields are reserved for WLA use. The design of the athletic
fields shall meet the then current applicable WIAA athletic requirements.
3.2 WLA agrees to prepare and install signs notifying the public that the
leased premises are open to the public, subject to WLA’s priority use
during the school athletic season (WIAA rules).
3.3 No later than March 1 of each year the Recreation Department and WLA
will jointly review the athletic field schedule endeavoring to maximize
athletic field utilization and to minimize scheduling conflicts, with special
emphasis on the June and August schedules. Solutions to unanticipated
schedule changes, such as cancellations due to weather, will be determined
mutually, but in deference to whichever party holds first occupancy and
use rights at that time. The City acknowledges that WLA may not know its
athletic fields schedule by March 1 of each year. WLA shall cooperate
with the Recreation Department in the coordination of unforeseen needs of
the athletic fields in June and August.
3.4 WLA shall not exclude the general public from the athletic fields, except
as required for practices and games.
3.5 Concession facilities, if any, shall be open to the general public.
3.6 The south parking lot will be open for public use on a first come, first
served basis. However, public access to the south parking lot shall not
affect the calculation of WLA’s compliance with applicable parking space
requirements. Overnight parking will be prohibited in the south parking
lot.
4. Maintenance.
4.1 Fields. The City will be responsible, at its cost, for mowing all the grass
on the leased premises. The remaining upkeep and maintenance of the
Improvements shall be the responsibility of the WLA, at its cost. The
Parks Superintendent will review WLA’s upkeep and maintenance and if
it is acceptable, approve same. The approval shall not be unreasonably
withheld, delayed, or conditioned. WLA shall not be responsible for
preparing the athletic fields for public use.
4.2 Parking Lots. WLA shall maintain the proposed south parking lot,
including snow removal, repairs, reconstruction and lighting. The City
shall maintain the existing north parking lot at the site, including snow
removal, repairs, reconstruction and lighting.
4.3 Lighting. The City shall continue to maintain and operate existing park
lighting, including the north parking lot and tennis courts. WLA shall
install and operate lighting for the south parking lot. Should WLA choose
to provide lights for the new fields, the City will not utilize those lights
without making usage and payment arrangements.
4.4 General. WLA agrees to reimburse the City for any electrical service
and/or garbage removal, relating to the leased premises.
5. Advertising. WLA shall be permitted to honor sponsors and donors with
permanent signs on the leased premises, similar to the plaques that the City has approved for
donated benches in the parks. All signage and banners whether permanent or temporary must be
approved by the Parks Superintendent prior to placement at the site. Any advertising must
comply with City ordinances.
6. Insurance. WLA will provide proof of insurance with general liability coverage
of $1,000,000 per occurrence, $2,000,000 general aggregate; umbrella liability of $2,000,000 per
occurrence and aggregate. A certificate evidencing the City as an additional named insured,
shall be provided to the City annually. WLA agrees to indemnify and hold harmless the City
from liability or losses caused by the fault or negligence of WLA and its employees or agents.
The City shall provide fire and extended coverage insurance regarding any buildings on the
property. WLA shall procure and have in effect at all times pertinent Workmen’s Compensation
Insurance coverage relative to their employees, if any.
To the extent authorized by law, the City agrees to indemnify and hold harmless WLA from
liability or losses caused by the fault or negligence of the City and its employees or agents.
7. No Assignment. Except as provided below, the rights provided to WLA under
this Agreement shall not be assigned, transferred, subleased, hypothecated or otherwise disposed
of, nor shall the control of the premises or any interest therein, or any part thereof, be granted by
the WLA to any other person or entity without the consent of the City Manager, which consent
shall not be unreasonably withheld, delayed, or conditioned. The parties stipulate that the City
Manager may consider the following criteria: (a) the financial responsibility of the proposed
assignee, (b) the entity or business character of the proposed assignee, (c) the legality of the
proposed use, and (d) the specific nature of the occupancy. The preceding prohibition against
assignment does not apply to the merger, consolidation or reorganization of WLA with another
non-stock corporation.
8. Revocation of Agreement.
8.1 This Agreement shall be revocable if WLA neglects or fails to perform or
observe any of the covenants of this Agreement, and WLA shall fail to
remedy the same within sixty (60) days after the City has given to WLA
written notice specifying such neglect or failure or within such period, if
any, as may be reasonably required to cure such default, if it is of such
nature that it cannot be cured within said sixty (60) day period, provided
that WLA shall have commenced the cure and proceeds with due diligence
to complete the cure. After 2065, this Agreement shall also be revocable
at any time by the City Manager upon 90 day written notice given to the
WLA. After any revocation, the City shall have the right to re-enter and
take possession of the premises forthwith. Neither the City of Fond du
Lac nor its agents or employees, shall be liable for any damages because
of such revocation.
8.2 After any revocation, WLA shall immediately quit and surrender
possession of the premises. If revoked for cause, WLA shall either restore
the site to its original condition if a commenced Improvement is not
completed prior to revocation, or complete the commenced Improvement.
9. Limitation of Municipal Liability. Nothing contained within this Agreement is
intended to be a waiver or estoppel of the City or its insurer to rely upon the limitations, defenses
and immunities contained within Wisconsin Statutes sections 345.05, 893.80, and 895.52. To
the extent that indemnification is available and enforceable, the City or its insurer shall not be
liable in indemnity, contribution or otherwise for an amount greater than the limits of liability of
municipal claims established under Wisconsin law.
10. Miscellaneous.
10.1 WLA agrees to conduct all practices, games and school activities on the
leased premises in a safe and considerate manner.
10.2 WLA acknowledges that the City reserves the right to use the balance of
McDermott Park located outside the leased premises, including, without
limitation, the north parking lot, the picnic pavilion, the storage/warming
building adjacent to the picnic pavilion, and the open area that has been
utilized as a skating rink.
10.3 WLA shall adhere to all ordinances, resolutions, rules and regulations as
established by the City and shall assist and cooperate with park personnel
in the care and maintenance of its occupied premises. The described
premises shall be maintained in a neat, clean and attractive condition at all
times.
10.4 The City acknowledges that WLA will be required to perform excavation
and related earth work in order to improve the leased premises pursuant to
the provisions of the master site plan. However, this work shall not
materially increase the discharge of storm water from the leased premises.
To the extent that local, state or federal regulatory approvals are required
before WLA is allowed to improve the leased premises, WLA expressly
reserves the right to terminate this Agreement if the approvals materially
increase WLA’s project costs or materially alter WLA’s contemplated use.
10.5 WLA shall comply with the Code of Ordinances of the City of
Fond du Lac, Wisconsin. However, WLA’s compliance with the Code of
Ordinances is subject to WLA’s rights and privileges conferred by the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§
2000cc-2000cc-5, and other applicable laws protecting religious entities.
Dated this _________ day of __________________________, 2015.
CITY OF FOND DU LAC WINNEBAGO LUTHERAN
ACADEMY ASSOCIATION
By: ________________________________ By: ______________________________
Joseph Moore, City Manager Board President
Attest: Attest:
_________________________________ ______________________________
Maggie Hefter, City Clerk Board Clerk
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